CHAPTER EIGHT - SENTENCING OF ORGANIZATIONS


PART B - REMEDYING HARM FROM CRIMINAL CONDUCT, AND EFFECTIVE COMPLIANCE AND ETHICS PROGRAM

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 422).  Amended effective November 1, 2004 (see Appendix C, amendment 673).


1.      REMEDYING HARM FROM CRIMINAL CONDUCT

Historical Note:  Effective November 1, 2004 (see Appendix C, amendment 673).


Introductory Commentary

As a general principle, the court should require that the organization take all appropriate steps to provide compensation to victims and otherwise remedy the harm caused or threatened by the offense.  A restitution order or an order of probation requiring restitution can be used to compensate identifiable victims of the offense.  A remedial order or an order of probation requiring community service can be used to reduce or eliminate the harm threatened, or to repair the harm caused by the offense, when that harm or threatened harm would otherwise not be remedied.  An order of notice to victims can be used to notify unidentified victims of the offense.

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 422).


§8B1.1.     Restitution - Organizations

(a)       In the case of an identifiable victim, the court shall --

(1)       enter a restitution order for the full amount of the victim's loss, if such order is authorized under 18 U.S.C. § 2248, § 2259, § 2264, § 2327, § 3663, or § 3663A; or

(2)       impose a term of probation or supervised release with a condition requiring restitution for the full amount of the victim's loss, if the offense is not an offense for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of restitution under that section.

(b)      Provided, that the provisions of subsection (a) do not apply --

(1)       when full restitution has been made; or 

(2)       in the case of a restitution order under § 3663; a restitution order under 18 U.S.C. § 3663A that pertains to an offense against property described in 18 U.S.C. § 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant to subsection (a)(2) above, to the extent the court finds, from facts on the record, that (A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.

(c)       If a defendant is ordered to make restitution to an identifiable victim and to pay a fine, the court shall order that any money paid by the defendant shall first be applied to satisfy the order of restitution.

(d)      A restitution order may direct the defendant to make a single, lump sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.  See 18 U.S.C. § 3664(f)(3)(A).  An in-kind payment may be in the form of (1) return of property; (2) replacement of property; or (3) if the victim agrees, services rendered to the victim or to a person or organization other than the victim.  See 18 U.S.C. § 3664(f)(4).

(e)       A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.

(f)       Special Instruction

(1)       This guideline applies only to a defendant convicted of an offense committed on or after November 1, 1997.  Notwithstanding the provisions of §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), use the former §8B1.1 (set forth in Appendix C, amendment 571) in lieu of this guideline in any other case.


Commentary

Background:  Section 3553(a)(7) of Title 18, United States Code, requires the court, "in determining the particular sentence to be imposed," to consider "the need to provide restitution to any victims of the offense." Orders of restitution are authorized under 18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, and 3663A.  For offenses for which an order of restitution is not authorized, restitution may be imposed as a condition of probation.

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 422); November 1, 1997 (see Appendix C, amendment 571).